There are two things that limit Resident Doctors' hours:

• the EWTD or UK working time regulations (WTR)
• the resident doctors contract (New Deal limits)

Article 5 of the EWTD states that a worker may agree with their employer not to apply the limit of 48 hours per week to that worker. This also requires employers to keep a list of which workers have opted out, of how long they have opted out for and how many hours they are working.

This does not exempt the worker from the rest requirements in the legislation or in their contract, nor does it exempt them from the hours limits in their contract.

There are many differences between the New Deal Contract and the EWTD legislation – the differences in rest requirements are shown below.

Comparison of rest requirements

Please note that it is not possible to opt out of the rest per day, natural breaks and uninterrupted rest per week limits. Similarly, it is not possible to opt of the new deal limits.

Using the opt out

Where someone has signed an opt out they may agree with their employer to work in excess of 48 hours per week on average.

They may do this in one of two ways:

1. Where there is a predictable increase in hours, for example evening clinics, extra sessions or early starts, this can be addressed through monitoring and pay assessment via banding, and where it is unpredictable, for example covering rota gaps at weekends, this can be assessed either by monitoring over a longer period of time or via payment at internal locum rates - the method to be used should be agreed locally at the Local Negotiating Committee.
2. Where an individual's work pattern differs from their counterparts then it is no longer appropriate for them to be monitored with their colleagues over a two-week period as recommended in the DH monitoring guidance, or devolved equivalent (such as HDL 200 17 Corrig in Scotland) and so we suggest that these individuals should be monitored over a single rota cycle in order to gain an accurate representation of their working pattern.

We do not advise covering clinical areas that you do not ordinarily work in or would not normally be deemed competent to do so.

So how do I opt out?

There is no nationally agreed system for resident doctors to opt out of the hours limits of the EWTD. We recommend keeping copies of our sample agreement letter and renewing your opt out every year if you wish.

What the opt out doesn't allow you to do

The opt out does not exempt an individual from either the rest requirements within the EWTD or any of the limits within the New Deal.

These must still be achieved for individuals who have opted out – therefore the combination of the EWTD requirement for 11 hours rest in 24 hours and requirements around compensatory rest mean that working after a ‘night’ shift or the day after a 24-hour partial shift is problematic.

Therefore, those who have opted out will find it easier to do additional work either after 5pm OR at weekends when otherwise not rostered for work.

It is also worth bearing in mind that Para 111b of the Terms and Conditions of Service states “Practitioners in the training grades shall not undertake locum medical or dental work for any other employer where such work would cause their contracted hours to breach the controls set out in paragraph 20” – paragraph 20 refers to limits on hours of duty noted above.

What if I don't want to opt out?

The EWTD is health and safety legislation and represents legal protection for you.

If any pressure is applied to you to opt out contact one of our BMA advisors. It may come under the term bullying and/or harassment.

Your employer should not:

• present you with an opt out as a requirement for employment
• place one within your contract
• make it a requirement for your training or for a specific placement.

Our position is that the individual opt out is not an appropriate mechanism to solve problems with EWTD implementation, especially those to do with training. We have a variety of concerns including:

• Residents not being appropriately remunerated for additional work
• The possibility of a differential training system to develop for those who have opted out and those who haven't
• A lessening of incentive on the part of employers to solve problems with training and staffing issues

Whilst the option to use the individual opt out remains a legal right we will fully support any doctor who feels put under pressure to opt out when they do not wish to.

Members, contact one our BMA Advisors on 0300 123 123 3.

Additional advice

Opting out and rota gaps

If you have opted out you may be able to perform additional work to cover rota gaps. However this should be separate to your normal work and should occur outside your normal working hours.

Remuneration

If you are performing additional hours of work then these should be paid. This can occur in one of two ways: either through being paid at hourly rates (which should be no less than the internal locum rates), or through the monitoring and banding system. This should be organised through negotiation with your employer, either directly and on an individual basis, or collectively via your Local Negotiating Committee (LNC). If you have any problems contact one of our BMA Advisors.

Implications for your employer

If you make a decision to opt out discuss this with your employer who needs to agree to employ you for additional hours outside EWTD limits if you have opted out. Your employer must not pressure you to sign an opt out. Your employer will still have to provide monitoring as previously and in addition, to keep a record of all the additional hours you do. They will have to assess your additional work based on all the separate restrictions on working patterns in the EWTD and in the contract.

Medico-legal implications

If you are working in your normal position with a duty of care to your patients for an NHS organisation then you would be covered by NHS indemnity (as per HSG 96/48) for costs arising from clinical negligence claims. If you plan on working routinely with an opt out then we advise you to contact your medical defence organisation so that they are aware of the situation and can advise you accordingly.